Responsibility for Human Rights

These issues of social and economic rights have put the subject of responsibility firmly on the table, but we thought it appropriate to address it at a more general level as well.

Responsibility for rights has a number of aspects. In this section we are concerned with two of them: first, responsibilities for securing the subject matter of each right; and second, responsibilities of rights-bearers themselves. A third set of responsibilities – for monitoring, investigating, and remedying rights violations – is discussed in section 6.

The UDHR enumerates rights, but it does not specify who carries the corresponding duties. The Declaration seems to assume that states are the primary bearers of responsibility. There is also a suggestion in the document that responsibility for upholding human rights may fall on individuals and entities below the level of the state, and on organizations above the level of the state. Indeed, the proclamation clause of the preamble states that “every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance.” Moreover, Article 28 provides that “everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.”

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For some rights – such as the due process provisions in Articles 9 to 11 – it is obvious that states are the principal targets of the constraints.

For the rest, the explanation for the UDHR’s openness on the question of responsibilities probably has more to do with the political resistance that would have met any attempt at explicit specification in 1947 and 1948. This would have been especially true of any attempt to specify international or nation-to-nation obligations in regard to social and economic rights. It might also have been true of social and economic rights generally, inasmuch as debate about the specification of duty-bearers would have opened up intense ideological disagreement about political economy.

While acknowledging the obstacles that would have faced any effort at specification in 1948, our task now is to expand on the reference to

“every individual and every organ of society” in the preamble and on the reference to everyone as “entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized” in Article 28. The rights in the Declaration should be understood as generating duties for states, international institutions, corporations, private persons, and even rights-bearing individuals themselves.

5.1 The special role of states

The role of states remains essential. Given the realities of our world – this was even more the case in 1948 – states must be regarded as the main guarantors of the rights of their own citizens. States still control the basic structure of each nation’s polity and legal system, and the overall structure of governance in each society. This is true whether we are talking about civil and political rights or social and economic rights.

States are duty-bound to the human rights of their citizens in several ways. First, states have inherent responsibility for certain institutions, like the legal system, which human rights directly constrain. Second, states also have a degree of control over other institutions and structures on which human rights impose limitations. Third, states have a greater power of enforcement against rights-violators than any other entity in society. Fourth, and conversely, states can become a major threat to human rights. Fifth, and fortunately, states also can furnish – through

73 5. Responsibility for Human Rights

the division of their powers – the major safeguard against state-based threats.

The special position of states is not just a matter of effectiveness and control. States claim a form of legitimacy that distinguishes them from other entities and agencies operating, whether lawfully or unlawfully, in a society. The UDHR and the covenants aim to impose human rights-based conditions on this legitimacy.

The laws and national constitutions of states, in most instances, will be the first recourse to address any violations of human rights, and should be regarded as the ordinary mode of human rights implementation.

Indeed, the human rights regime initiated by the UDHR was intended as a foundation not only for the subsequent covenants and international agreements, but also for the laws and national constitutions of individual countries.

In a globalized world, it is also the duty of each state to concern itself to a certain extent with the human rights of persons outside its borders, taking into account the following four forms of influence: first, the effect of the state’s own policies and actions on other countries;

second, the impact on other countries of the way in which it participates in international institutions; third, the provision and efficacy of development aid; and fourth, the response to rights abuses in other countries, either by way of criticism and public denunciation or, in the last resort, by intervention and support for intervention.

While states have the primary responsibility for ensuring the human rights of their citizens, there are numerous examples of situations where governments no longer control substantial tracts of territory, no longer control the military or have a monopoly on force, lack legitimacy, and are unable or unwilling to provide public services. In these situations, who is responsible for the human rights of the population? This issue needs to be urgently addressed by the international community.

5.2 Other entities

The fact that one entity – like a state – has responsibility for a given right is quite compatible with other entities also having their own obligations.

Rights generate waves of responsibility, and those responsibilities may fall on an array of duty-bearers.